# "Specific Intent" (legal-eagle question) **URL:** \ **Category:** Factual Questions\ **Created:** [May 12, 2009, 4:48pm UTC](https://boards.straightdope.com/t/specific-intent-legal-eagle-question/496181 "2009-05-12T16:48:59Z")\ **Posts on this page:** 13\ **Page:** 1
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [May 12, 2009, 4:48pm UTC](https://boards.straightdope.com/t/specific-intent-legal-eagle-question/496181/1 "2009-05-12T16:48:59Z")
Over in GD in [this thread](http://boards.straightdope.com/sdmb/showthread.php?t=516802&page=6) on torture we could use a ruling on what “Specific Intent” means. Note this question is in GQ and seeking a factual answer on what the law in question actually says as a legal matter. This is not a debate on the rightness or wrongness of how it is written. At issue is the following Federal statute on torture: > [@](#): > > (1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control; > > (2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from— > (A) the intentional infliction or threatened infliction of severe physical pain or suffering; > (B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; > (C) the threat of imminent death; or > (D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and > > (3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States. > > SOURCE: [TITLE 18 \> PART I \> CHAPTER 113C \> § 2340](http://www.law.cornell.edu/uscode/18/usc_sec_18_00002340----000-.html) In the other thread there is a disconnect on what “specifically intended” means here. One person holds that in order to violate that statute you have to “specifically intend” to violate that statute. Stated another way, if a lawyer tells you (in their professional capacity) that doing “X” to someone is not torture then you cannot be held liable for violating that statute…regardless if “X” is unequivocally torture. Since you were told it was ok as a legal matter you are incapable of “specifically intending” to violate 2340. The flip-side is a reading of 2340 that says in order to violate it you need to have “specifically intended to inflict severe physical or mental pain or suffering”. As such it does not matter whether someone told you it was legal or not. If you intended to cause severe suffering you violate the statute (presume, for the sake of argument, you know you are inflicting severe suffering). Opinions? ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [May 12, 2009, 5:36pm UTC](https://boards.straightdope.com/t/specific-intent-legal-eagle-question/496181/2 "2009-05-12T17:36:29Z")
In a legal term _specific intent_ means that the person intended their act or ommssion to have the consequence that it did, for example in murder you need to intend to kill the person or cause grivieous bodily harm. The opposite of this is “_basic intent_” where the act or ommission is one that a reasonable person should have contemplated would have the consequence that it did, even if the person did not infact specifically intend that. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [May 12, 2009, 5:43pm UTC](https://boards.straightdope.com/t/specific-intent-legal-eagle-question/496181/3 "2009-05-12T17:43:21Z")
> [@AK84](#): > > In a legal term _specific intent_ means that the person intended their act or ommssion to have the consequence that it did, for example in murder you need to intend to kill the person or cause grivieous bodily harm. The opposite of this is “_basic intent_” where the act or ommission is one that a reasonable person should have contemplated would have the consequence that it did, even if the person did not infact specifically intend that. Fine. How is it applied to the above cited statute? Does “specifically intended” to cause suffering mean the same thing as specifically intending to violate 2340? ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [May 12, 2009, 5:55pm UTC](https://boards.straightdope.com/t/specific-intent-legal-eagle-question/496181/4 "2009-05-12T17:55:31Z")
> [@Whack-a-Mole](#): > > Fine. > > How is it applied to the above cited statute? Does “specifically intended” to cause suffering mean the same thing as specifically intending to violate 2340? Generally, it would mean the perpetrator had intended to inflict severe mental or physical pain or suffering, as that is defined in the statute, apart from that incidental to lawful sanctions. It would also include undertaking actions whose consequences the perpetrator knows with practical certainty would include the infliction of severe mental or physical pain or suffering, etc. etc. It does not mean that the perpetrator must intend to violate the law. His awareness or ignorance of the legality of his conduct does not, except perhaps in extraordinary cases that I cannot even imagine, affect his criminal liability. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 12, 2009, 6:00pm UTC](https://boards.straightdope.com/t/specific-intent-legal-eagle-question/496181/5 "2009-05-12T18:00:08Z")
> [@Kimmy\_Gibbler](#): > > Generally, it would mean the perpetrator had intended to inflict severe mental or physical pain or suffering, as that is defined in the statute, apart from that incidental to lawful sanctions. It would also include undertaking actions whose consequences the perpetrator knows with practical certainty would include the infliction of severe mental or physical pain or suffering, etc. etc. > > It does not mean that the perpetrator must intend to violate the law. His awareness or ignorance of the legality of his conduct does not, except perhaps in extraordinary cases that I cannot even imagine, affect his criminal liability. Ahem. With respect to violation of the statute… yes. But his “awareness or ignorance of the legality of his conduct” certainly does come into play when considering an estoppel by reliance defense, for instance. ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [May 12, 2009, 7:21pm UTC](https://boards.straightdope.com/t/specific-intent-legal-eagle-question/496181/6 "2009-05-12T19:21:49Z")
> [@Bricker](#): > > Ahem. > > With respect to violation of the statute… yes. > > But his “awareness or ignorance of the legality of his conduct” certainly does come into play when considering an estoppel by reliance defense, for instance. I think that suggests that the official misstatement defense is more available than it in fact is. This [post](http://uchicagolaw.typepad.com/faculty/2009/04/torture-and-reliance-on-official-misstatements-of-law.html) addresses the question head on. Official misstatement is not (in general, see below) a statutory creature and in the federal context, according to this article, it is usually imported in through the Due Process Clause. Our common law heritage, and the thumb on the scale, is _against_ the efficacy of an official misstatement defense. Notice the comments of MKS, citing the Detainee Treatment Act, and Richard McAdams, who analyzes the scope of the defense contained in that statute. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 12, 2009, 8:16pm UTC](https://boards.straightdope.com/t/specific-intent-legal-eagle-question/496181/7 "2009-05-12T20:16:26Z")
> [@Kimmy\_Gibbler](#): > > I think that suggests that the official misstatement defense is more available than it in fact is. This [post](http://uchicagolaw.typepad.com/faculty/2009/04/torture-and-reliance-on-official-misstatements-of-law.html) addresses the question head on. Official misstatement is not (in general, see below) a statutory creature and in the federal context, according to this article, it is usually imported in through the Due Process Clause. Our common law heritage, and the thumb on the scale, is _against_ the efficacy of an official misstatement defense. > > Notice the comments of MKS, citing the Detainee Treatment Act, and Richard McAdams, who analyzes the scope of the defense contained in that statute. The link you’ved posted pretty strongly makes the case that such a defense WOULD be available. Am I missing something? ---
**Author:** ![Kimmy\_Gibbler](https://avatars.discourse-cdn.com/v4/letter/k/bbe5ce/32.png) [@Kimmy\_Gibbler](https://boards.straightdope.com/u/Kimmy_Gibbler)\ **Post date:** [May 12, 2009, 8:52pm UTC](https://boards.straightdope.com/t/specific-intent-legal-eagle-question/496181/8 "2009-05-12T20:52:19Z")
> [@Bricker](#): > > The link you’ved posted pretty strongly makes the case that such a defense WOULD be available. > > Am I missing something? I think under DTA, yes, it is available. However, I think the article shows that you cannot assert an official misstatement defense _simpliciter._ You have to convince the court to apply it through the conduit of the Due Process clause, which the article suggests may be rare (the author observes that the MPC is still not federal law, and that the official misstatement doctrine has not been codified into law; as to the Due Process argument, he writes that it has been done “on occasion,” which to me does not intimate that it is SOP). Recall, the question posed is on specific intent and whether the specific intent is (i) to commit the actus reus, or (ii) to break the law. It is assuredly the former. This harmonizes with the common law principle that one’s knowledge of the law does not affect criminal liability. The defense of official misstatement is a recent addition to our jurisprudence (and as noted above, I do not think it exists everywhere). I think it would be disingenuous to assert that a defense of official misstatement, _generally,_\* reposes on well-settled law that would occasion no judicial hesitation. - Here, the critical difference is the sweeping language of the DTA. But this obviously is not a general principle of criminal law. ---
**Author:** ![AK84](https://avatars.discourse-cdn.com/v4/letter/a/85e7bf/32.png) [@AK84](https://boards.straightdope.com/u/AK84)\ **Post date:** [May 12, 2009, 9:48pm UTC](https://boards.straightdope.com/t/specific-intent-legal-eagle-question/496181/9 "2009-05-12T21:48:41Z")
From the way the statute is drafted I would say that it requires that a person commit an act or omission specifically intending or knowing that it is torture. ---
**Author:** ![Jodi](https://avatars.discourse-cdn.com/v4/letter/j/7feea3/32.png) [@Jodi](https://boards.straightdope.com/u/Jodi)\ **Post date:** [May 12, 2009, 10:22pm UTC](https://boards.straightdope.com/t/specific-intent-legal-eagle-question/496181/10 "2009-05-12T22:22:06Z")
> [@AK84](#): > > From the way the statute is drafted I would say that it requires that a person commit an act or omission specifically intending or knowing that it is torture. I disagree. The statute says you must specifically intend to “inflict severe physical or mental pain or suffering”. If you do something that constitutes “severe physical or mental pain or suffering” but that IYO is not torture, you are still culpable under the statute. The more interesting question IMO is whether “severe” is part of the _mens rea_ or an objective component. IOW, must you _intend_ the pain and suffering to be “severe”, or is it enough that others (like a jury) would consider it severe even if you did not? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 12, 2009, 11:55pm UTC](https://boards.straightdope.com/t/specific-intent-legal-eagle-question/496181/11 "2009-05-12T23:55:00Z")
> [@Kimmy\_Gibbler](#): > > I think under DTA, yes, it is available. However, I think the article shows that you cannot assert an official misstatement defense _simpliciter._ You have to convince the court to apply it through the conduit of the Due Process clause, which the article suggests may be rare (the author observes that the MPC is still not federal law, and that the official misstatement doctrine has not been codified into law; as to the Due Process argument, he writes that it has been done “on occasion,” which to me does not intimate that it is SOP). > > Recall, the question posed is on specific intent and whether the specific intent is (i) to commit the actus reus, or (ii) to break the law. It is assuredly the former. This harmonizes with the common law principle that one’s knowledge of the law does not affect criminal liability. The defense of official misstatement is a recent addition to our jurisprudence (and as noted above, I do not think it exists everywhere). I think it would be disingenuous to assert that a defense of official misstatement, _generally,_\* reposes on well-settled law that would occasion no judicial hesitation. > > - Here, the critical difference is the sweeping language of the DTA. But this obviously is not a general principle of criminal law. Estoppel by reliance is not as new as all that, and I don’t believe I’d be as quick as you are to dismiss the due process concerns raised by a failure to recognize the defense. To tell someone that a given act is legal, and then prosecute him for relying on your misstatement goes to the heart of the due process guarantee: basic fairness and equity. And as you observe, in this particular instance the line of inquiry is moot because the defense is statutorily authorized. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [May 13, 2009, 3:52am UTC](https://boards.straightdope.com/t/specific-intent-legal-eagle-question/496181/12 "2009-05-13T03:52:08Z")
This may be a semi-hijack (not sure): Does Nuremberg have any legal sway in this? Near as I can tell the Nuremberg trials have no standing as legal precedent in the US but not sure on that. IIRC though those trials established that some crimes (crimes against humanity things I think) cannot be defended against by claiming your boss made you do it. Some crimes your own conscience should trump all else and you should, rightly, refuse to do the deed. I have seen the SCOTUS resort to legal principles outside of what was written in US law. Just not sure how far such things go. In short I guess I am asking how much can I rely on bad advice from a lawyer and then use it as a defense? Take an extreme example (admittedly off the charts): Lawyer tells me as a matter of law I can shoot and kill my neighbor who borrowed my lawnmower and will not return it. Based on that I go ahead and kill my neighbor. I now have a defense against prosecution? Example is out there but seems that is kind of what has been said so far. I must be missing something (I hope I am missing something). ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [May 13, 2009, 4:39pm UTC](https://boards.straightdope.com/t/specific-intent-legal-eagle-question/496181/13 "2009-05-13T16:39:46Z")
> [@Whack-a-Mole](#): > > In short I guess I am asking how much can I rely on bad advice from a lawyer and then use it as a defense? Take an extreme example (admittedly off the charts): As a general principle, your reliance on the advice has to be reasonable. Whether it’s reasonable is a question of fact.